Selective Incorporation & the Bill of Rights

“Congress shall make no law…” Founding Fathers fear strong national government, NOT state government. Many states did have own Bill of Rights What type of federalism did we have during this time period? How might that relate to the way the states and federal BoRs were used? -Barron v. Baltimore (1833) determined BOR only restrained the national government NOT the states.

Civil Rights Amendments are Passed “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any state deprive any person of life, liberty or property, without due process of the law…”

1925, Gitlow vs New York Gitlow is charged under a NY statute that made it a crime to advocate the overthrow of the government through force or violence. He sued saying: ▫The precedent of Barron is wrong ▫The Constitution grants Freedom of Speech that the Court must rule on specifically ▫Lower courts all agreed that he was correctly charged and his guilty verdict should stand.

SCOTUS says… The New York law is ok (and so is the conviction) because of the violence clause. However, the decision states that the 14 th Amendment means that the federal government can enforce the Bill of Rights on states. (overturned Barron v. Baltimore) This precedent is huge.

And so begins the development of “Incorporation Doctrine” Court announced that freedoms of speech and press were “fundamental personal rights & liberties protected by the due process clause” Eventually, Warren Court in the 1960s applies more and more of the BOR to the states What’s NOT applied? 2 nd, 3 rd, 7 th, Grand Jury requirement of the 5 th, prohibition of excessive fines & bail in the 8th

1st Amendment: Freedom of Religion-- Establishment Establishment Clause: “Congress shall make no law respecting an establishment of religion” Clause in action: Are you allowed to pray at school? Other issues– “Wall of Separation” between church & state (Jefferson) “Creation science” vs. Darwinian theory of evolution Religious symbols during the holidays

1 st Amendment: Religion– Free Exercise Provision that prohibits government from interfering with the practice of religion What’s fair game? Polygamy? Drug Use? Refusing medical treatment for your child?

Free Expression: Press Libel (written word) & slander (spoken defamation) No prior restraint (censorship)

Free Speech How to uphold free speech while maintaining public order? Public v. private property Symbolic Speech: armband (Tinker v. Des Moines, flag-burning (Texas v. Johnson)

Free Assembly Right to protest, within reasonable limits (“time, place & manner restrictions”) Limits on who can assemble? ▫The right of KKK to assemble has been upheld When is protest harassment?

2 nd Amendment: Right to Bear Arms Not currently part of incorporation (states may place limits on gun ownership) Is this changing? Supreme court struck down DC law banning handgun ownership

3 rd Amendment: Forget About it! +

4 th, 5 th, 6 th Amendments: Due Process Probable cause Unreasonable search & seizures Vague terms which we need judges to continually re- evaluate Exclusionary Rule: very controversial– no evidence which was obtained illegally may be used against you in court Other important principles: no self-incrimination, right to counsel, right to “speedy trial”, right to jury

7 th Amendment: Civil Cases Not important, not many federal civil cases

8 th Amendment: Cruel and Unusual Punishments No excessive fines or bail No cruel & unusual punishment ▫Is the death penalty cruel? Torture??

9 th Amendment: “Unremunerated Rights” 9 (Rights not specifically listed in the constitution) Just because it isn’t written here doesn’t mean it’s not your right Source of the implied right to privacy cited in Roe v. Wade decision

10 th Amendment: Rights reserved to the States This is why we consider any topic not covered in the Constitution to be the business of the states Federal government has used the Commerce Clause (Ch. 3 Federalism) and fiscal federalism to exert more authority over the states